Citation Nr: 22012374 Decision Date: 03/03/22 Archive Date: 03/03/22 DOCKET NO. 16-19 333A DATE: March 3, 2022 ORDER Entitlement to service connection for carpal tunnel syndrome, right wrist, is denied. Entitlement to service connection for upper back/bilateral shoulder pain is denied. Entitlement to service connection for bilateral foot pain is denied. FINDINGS OF FACT 1. Carpal tunnel syndrome, right wrist, was not manifested in service, and is not otherwise attributable to service. 2. Arthritis of the cervical spine was not manifested to a compensable degree within one year of separation from service; an upper back/bilateral shoulder disability was not manifested in service, and is not otherwise attributable to service. 3. The Veteran's bilateral pes planus condition preexisted service and was not aggravated therein; arthritis of the feet was not manifested to a compensable degree within one year of separation from service; a foot disability other than pes planus was not manifested in service, and is not otherwise attributable to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for carpal tunnel syndrome, right wrist, have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5103; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for upper back/bilateral shoulder pain have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 5103; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for entitlement to service connection for bilateral foot pain have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1153, 5103; 38 C.F.R. §§ 3.102, 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1975 to February 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2018 the Veteran provided testimony before the undersigned Veterans Law Judge by videoconference hearing. A transcript of the hearing is of record. In September 2018, the Board remanded the case for further development. The Board denied the issues on appeal in a March 2020 decision. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a January 2021 Joint Motion for Remand (JMR), the Court remanded the issues on appeal for compliance with the JMR. In June 2021, the Board remanded the issues on appeal (and service connection for poor circulation of the lower extremities) for further development. Subsequently, a December 2021 rating decision granted service connection for venous insufficiency of the lower extremities. Thus, that issue is no longer before the Board. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Generally, in order to establish service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303 (b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). Service connection may be established for a current disability on the basis of a presumption under the law that certain chronic diseases, to include arthritis, manifesting to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). Procedural History As a preliminary matter, there has been substantial compliance with the prior Board remand directives. The January 2021JMR noted that when the Veteran filed his claim for service connection in 2013, he stated that he had been seen in the Newark, Ohio, and Columbus, Ohio, VA medical centers since 1993. During his June 2018 Board hearing, he testified that he first started going to the VA clinic in the 1980s. In September 2018, the Board remanded the case, in part, to "[o]btain VA treatment records of the Veteran beginning in the 1980s and continuing to date from the VA clinic in Columbus, Ohio[,]" and to notify the Veteran if the records were unavailable. In August 2019, VA requested the Veteran's VA treatment records from the Columbus VA outpatient clinic (OPC) for the period from January 1980 through November 2008, and in September 2019, the Columbus VAOPC responded that all available records from the Columbus VA are in "CPRS/CAPRI." The RO also informed the Veteran in a September 2019 letter that it determined that records from January 1, 1980, to December 17, 1990, could not be located and are unavailable. However, the JMR noted that despite the Veteran's statement that he had been seen in the Columbus, Ohio VA medical center since 1993, and VA's response that all available records from the Columbus VA were uploaded, the claims file did not contain any VA treatment records from 1993 until November 2008. Furthermore, laboratory results from September and December 1995 are identified in later-dated VA medical records, but corresponding medical records from the ordering physician are not. See VA treatment records showing September 11, 1995, and December 18, 1995, blood test results. Thus, the record raised a question as to whether VA made sufficient efforts to obtain the Veteran's VA medical records for the period from December 1990 through November 2008. See § 3.159(c)(2). The Board's June 2021 remand requested that the RO make an additional attempt to obtain the Veteran's VA medical records for the period from December 1990 through November 2008. In September 2021, the RO informed the Veteran by letter that: In 2005, VA transitioned to electronic tracking of records of treatment administered at VA Medical Centers (VAMC). All available records of treatment from 2005 to present will be electronically obtained and considered in our decision. Therefore, any treatment records from 2005 or later that are not found to be a part of the electronic record either do not exist or are determined to be unavailable and further efforts by VA to obtain the records would be futile. We requested your pre-2005 VA Medical Center Medical Records. Specifically we requested the period of December 1990 through November 2008 from Columbus VAMC. We have determined that these records cannot be located and therefore are unavailable for review. All efforts to obtain the needed information have been exhausted, and based on these facts, we have determined that further attempts to obtain the records would be futile. Your claim file contains documentation of the written and telephonic efforts we made to attempt to obtain these records. We have taken the following actions in an effort to obtain these records: We contacted records management department of Columbus VAMC on June 30, 2021 to obtain your pre-2005 VA Medical Center Medical Records, however, they responded stating "NO ADDITIONAL HARDCOPY RECORDS ARE AVAILABLE FROM THE CHALMERS P WYLIE [file]". The letter also requested that the Veteran submit any copies of the relevant records that he had in his possession. The Board finds that VA's duty to assist has been satisfied, and that VA substantially complied with the Board's September 2018 and June 2021 remands. 1. Entitlement to service connection for carpal tunnel syndrome, right wrist, The Veteran testified that he believes his right wrist carpal tunnel syndrome is related to his use of wrenches and other tools in his work in the motor pool in service, as well as extensive writing required by his in-service duties. The service treatment records do not note any complaints related to carpal tunnel syndrome or the right wrist. The service separation examination in November 1977 noted normal upper extremities examination. An August 2009 VA treatment record noted possible mild carpal tunnel syndrome, right worse than left. A VA examination in October 2019 noted diagnoses of carpal tunnel syndrome, status post release, and status post cubital tunnel surgery. The examiner noted that the Veteran reported a history of working "in repair parts for aircraft/tanks/trucks while in military service. Reports noticing intermittent [right] hand numbness, but doesn't recall seeking medical care. VA diagnosed with [right] carpal tunnel and cubital tunnel syndrome about 10 years ago after NCS/EMG testing. [Right carpal tunnel syndrome] and cubital tunnel surgery (2017), good results but still with some pain/numbness/cramping, intermittent Current Treatment/Frequency: shooting pain in [right] wrist, stiff wrist, feels numb base of palm, intermittent cramps in fingers/base of thumb and medial side of hand." The examiner stated that Veteran has: [c]arpal tunnel syndrome of right wrist and residuals from s/p carpal tunnel release right wrist and s/p cubital tunnel release, residual pain/parasthesia. It's possible that working with vibrating tools or on an assembly line that requires prolonged or repetitive flexing of the wrist may create harmful pressure on the median nerve or worsen existing nerve damage, resulting in carpal tunnel syndrome. However, the scientific evidence is conflicting, and these factors haven't been established as direct causes of carpal tunnel syndrome. Additionally, the amount of time spent in military service (less than 2 years) as well as the span of time between military service and subsequent diagnosis and treatment of his right carpal tunnel syndrome spans several decades. It is less likely than not that Veteran's right carpal tunnel syndrome was proximately due to or caused by military service. The Board finds this opinion highly probative in determining whether the Veteran's right wrist carpal tunnel syndrome is related to his period of service as it is shown to have been based on a review of the Veteran's record and is accompanied by a sufficient explanation. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The examiner explained that there was no established scientific link between the type of work the Veteran did in service and carpal tunnel syndrome. The examiner further noted that the Veteran's relatively brief period of service and the length of time between separation from service and his development of carpal tunnel syndrome made it less likely than not his carpal tunnel syndrome was related to service. There are no medical opinions of record contradicting the VA examiner's opinion. The Board acknowledges the Veteran's assertions that his right wrist carpal tunnel syndrome is related to his military service, including his use of wrenches and other tools in his work in the motor pool in service, as well as extensive writing required by his in-service duties. However, as this issue is medically complex, he is not competent to provide a nexus opinion in this case. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Since the competent and probative evidence of record fails to indicate that the Veteran's right wrist carpal tunnel syndrome had onset in, or is otherwise related to service, service connection is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. 38 U.S.C. § 5107 (b). 2. Entitlement to service connection for upper back/bilateral shoulder pain The Veteran testified that he believes his upper back/shoulder complaints are related to heavy lifting, particularly overhead lifting, of artillery parts for tanks and aircraft. He testified that he began experiencing back and shoulder complaints in service. The service treatment records do not note any complaints related to the upper back or shoulders. The service separation examination in November 1977 noted normal spine and other musculoskeletal examination. A September 2014 private chiropractor record noted the Veteran complained of upper back pain when standing for a long time. A diagnosis of thoracic spondylosis was noted. A VA examination in October 2019 noted diagnoses of cervical spine degenerative joint disease, and bilateral shoulder impingement. The examiner noted that the: [V]eteran reports pain to upper back/bilateral shoulders began "years" ago but unable to recall exactly when since it was gradual onset. Medical records include encounter with chiropractor (9/26/2014 Mantonya Chiro Center: Cspine xray mod cervical lordosis, DJD C5-6, anterior/posterior/lateral osteophytes moderate C3-7), which is more likely than not the primary cause of his complaint of upper back/bilateral shoulder pain versus shoulder pathology. However, based on records review and exam conducted today, diagnosing Veteran with bilateral shoulder impingement given his restricted [range of motion] with flexion/abduction and associated pain pattern. Medical records during military service and post-discharge are silent for any diagnosed bilateral shoulder condition. Cervical degenerative joint disease diagnosed almost 40 years following discharge from service, with no objective evidence of chronicity of care. Veteran's claimed condition of upper back/bilateral shoulder pain (bilateral shoulder impingement, cervical degenerative joint disease) is not at least as likely incurred in or caused by upper back/bilateral shoulder pain during service. The Board finds this opinion highly probative in determining whether the Veteran's upper back/shoulder disabilities are related to his period of service, as it is shown to have been based on a review of the Veteran's record and is accompanied by a sufficient explanation. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The examiner explained that the Veteran's arthritis of the cervical spine, and his bilateral shoulder impingement, were diagnosed decades after service, and that there was no objective evidence of relevant complaints in service or of chronicity of care after service. There are no medical opinions of record contradicting the VA examiner's opinion. The Board acknowledges the Veteran's assertions that his upper back/shoulder conditions are related to his military service, including heavy lifting. However, as this issue is medically complex, he is not competent to provide a nexus opinion in this case. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). To the extent that the Veteran reports that he had upper back and shoulder pain in service, as the VA examiner has attributed his current complaints to the diagnoses of cervical spine degenerative joint disease and shoulder impingement made decades after service, there is no basis for attributing the current disabilities to the Veteran's current report of in-service pain. As there is no evidence showing initial manifestations of arthritis in service, or to any degree within one year of separation from service, the one-year presumption for arthritis under 38 C.F.R. §§ 3.307 and 3.309 is not an avenue for service connection, nor are the provisions of 38 C.F.R. § 3.303 (b) pertaining to chronicity or continuity of symptomatology. See 38 C.F.R. §§ 3.303 (b), 3.307, 3.309. Since the competent and probative evidence of record fails to indicate that the Veteran's upper back/cervical spine/bilateral shoulder disabilities had onset in, or are otherwise related to service, service connection is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. 38 U.S.C. § 5107 (b). 3. Entitlement to service connection for bilateral foot pain The Veteran testified that he believes his bilateral foot complaints are related to the use of blousing rubbers [elastic bands worn around the legs to hold fatigues above boots] during service. He reports that he experiences pain in both feet. At the outset, the Board notes that the Veteran's January 1975 service entrance examination noted "mild pes planus, no [symptoms]." A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. See 38 U.S.C. § 1132; 38 C.F.R. § 3.304 (b). Cases in which the condition is noted on entrance, as here, are however, governed by the presumption of aggravation of a preexisting disability contained in 38 U.S.C. § 1153. This statute provides that a preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. In such cases, the record must simply show by a preponderance of the evidence that there was an increase in disability during service to trigger the presumption of aggravation. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153; 38 C.F.R. §§ 3.304, 3.306(b). Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition itself, as contrasted with mere symptoms, has worsened. See Jensen v. Brown, 4 Vet. App. 304, 306 -07 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). As noted, the Veteran's January 1975 entrance examination report shows that mild pes planus, no symptoms was noted upon entrance to his period of active service. Therefore, he is not presumed sound upon entrance as it relates to his feet. 38 C.F.R. § 3.304. As noted above, a preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 C.F.R. § 3.306. However, the evidence shows there was no increase in the severity of the preexisting pes planus disability during service. The service treatment records do not include any complaints or findings related to feet or pes planus. The separation examination report in November 1977 shows his feet were normal at discharge. Thus, the competent and contemporaneous evidence does not demonstrate an increase in the Veteran's preexisting pes planus disability in service. A VA examination in October 2019 noted diagnoses of bilateral flat feet, metatarsalgia, and degenerative joint disease. The examiner noted that the Veteran reported: Foot pain started bothering him in bootcamp. Reports very unreliable footwear. Routinely wore wet boots continuously. Pain to balls and heels of feet with weight bearing. Denies any trauma or prior surgeries to feet. Course since Onset: Veteran does not remember seeking medical care during service for bilateral foot pain. Over past 5-10 years has tried shoe inserts, and more recently fitted for insoles (no help); Cortisone shots in heels bilateral (July 2019) which relieved some pain on heels but pain returning now, also recently prescribed heel braces (referred to Podiatry outside) but has not yet been fitted for these. Current Symptoms: Burning/pain sensation to ball and heel of both feet, continuous. Pain worsens with pressure (standing); improves with non-weight bearing activities. Current Treatment and Frequency: Bilateral insoles, waiting on heel braces. The examiner opined that: [Service treatment records] are silent for complaint of bilateral foot pain; mild pes planus bilateral was annotated on entrance exam. Post discharge medical records (several decades following discharge) indicate diagnosis of metatarsalgia and bilateral pes planus with ensuing treatment (injection therapy bilateral feet x 1, orthotic inserts). Veteran's a diagnosis of bilateral foot pain (due to bilateral metatarsalgia and bilateral pes planus) is not at least as likely as not (50 percent or greater probability) incurred in or caused by the bilateral foot pain during service. The examiner also stated that it is not at least as likely as not that bilateral metatarsalgia (bilateral foot pain) had onset during military service or is otherwise related to service, to include the Veteran's reported use of blousing rubbers during service, which he noted caused restriction of blood flow, as well as injuries to his lower legs from banging them on tanks and artillery in the course of his duties. He examiner explained there is no evidence of chronicity of care in medical records spanning military service over past several decades (until within last 5-10 years) with regards to bilateral foot pain. For these reasons, the examiner found that a nexus has not been established. A December 2019 treatment record noted degenerative joint disease of the feet as well as plantar fasciitis. Although the Veteran can report what he saw or experienced firsthand, he has not been shown to possess the education, training, and experience to offer medical opinions on complex matters such as the ability determining the severity of pes planus, or to attest to the natural progression of it. Further, the clinical finding of pes planus at entrance (but not at discharge) weighs against any lay assertion that his condition worsened during service. Accordingly, any contention by the Veteran would not be competent or probative evidence that his pes planus was permanently aggravated in service. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). As a whole, the Board finds that the medical evidence is more probative than the Veteran's lay statement. In short, the competent and credible evidence of record does not reflect a permanent aggravation of the preexisting pes planus during service. The Board finds the VA examiner's opinion highly probative in determining whether the Veteran's degenerative joint disease of the bilateral feet is related to his period of service, as it is shown to have been based on a review of the Veteran's record and is accompanied by a sufficient explanation. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The examiner explained that the Veteran's arthritis of the feet was diagnosed decades after service, and that there was no objective evidence of relevant complaints in service or of chronicity of care after service. There are no medical opinions of record contradicting the VA examiner's opinion. The Board acknowledges the Veteran's assertions that his bilateral foot conditions (other than pes planus) are related to his military service, including use of blousers. However, as this issue is medically complex, he is not competent to provide a nexus opinion in this case. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). As there is no evidence showing initial manifestations of degenerative joint disease (arthritis) of the feet in service, or to any degree within one year of separation from service, the one-year presumption for arthritis under 38 C.F.R. §§ 3.307 and 3.309 is not an avenue for service connection, nor are the provisions of 38 C.F.R. § 3.303 (b) pertaining to chronicity or continuity of symptomatology. See 38 C.F.R. §§ 3.303 (b), 3.307, 3.309. Since the competent and probative evidence of record fails to indicate that the Veteran's bilateral foot disabilities (other than pes planus) had onset in, or are otherwise related to service, service connection is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. 38 U.S.C. § 5107 (b). D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. G. Mazzucchelli, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.